Reachable on arrival. (See also Always accessible.) In the Charterparty Laytime Definitions 1980, this expression is defined as meaning that “… the Charterer undertakes that when the ship arrives at the port there will be a loading) discharging berth for her to which she can proceed without delay”.
Therefore, this expression is initially connected with how a ship becomes an “arrived ship” and with the commencement of laytime. (See also Arrived ship.)
The phrase “reachable on arrival” was considered in The Laura Pima, 1982. The vessel was on a berth charter on the EXXONVOY 1969 form. It was prevented from berthing because of port congestion. The question for the courts was whether the delay was for charterers’ or owners’ account. The clauses in the charterparty stated:
6. “Notice of Readiness. Upon arrival at customary anchorage at each port of loading . . . the master . . . shall give the charterer . . . notice . . . that the vessel is ready to load … cargo, berth or no berth, and laytime … shall commence upon the expiration of 6 hours after receipt of such notice or upon the vessel’s arrival in berth whichever first occurs. However, where delay is caused to vessel getting into berth and after giving notice of readiness for any reason over which Charterer has no control, such delay shall not count as used laytime.”
9. “Safe berthing-shifting. The vessel shall load and discharge at any safe place or wharf … reachable on her arrival which shall be designated and procured by the Charterer . . .”
It was decided in the House of Lords that the provisions of the latter clause prevailed over the former. The former clause protected the charterers if delay was caused by a reason over which the Charterer had no control. Port congestion could be such a reason. However, the court held that the latter clause required the charterers to nominate a discharging place, which was reachable on the vessel’s arrival. If, on arrival, the vessel was unable to proceed to the discharging place, for any reason, the charterers had breached the contractual obligation.
The leading judge said:
“. . . `Reachable on arrival’ is a well-known phrase and means precisely what it says. If a berth cannot be reached on arrival, the warranty is broken unless there is some relevant protecting exception . . . The berth is required to have two characteristics: it has to be safe and it also has to be reachable on arrival.”
The decision was considered to be unreasonable because it seemed to remove all protection of the Charterer under the first clause, despite the berth being unreachable for reasons outside the charterer’s control. The decision was based on congestion and attempts were made to distinguish the decision on these grounds. However, these attempts by charterer were generally unsuccessful.
For example, in The Fjordaas, 1988, the vessel was again chartered on a similar form of charterparty with the same clauses (the ASBATANKVOY form). The vessel arrived at the discharging port of Mohammedia in Morocco but because of its size had to discharge at a sea-line. The sea-line was unoccupied and available. However, the vessel was initially prevented from berthing because the port authorities prohibited night navigation and also no tugs were available until later in the morning. When the pilot did board about 10 hours after the vessel had tendered the notice of readiness, bad weather prevented berthing. Eight days after arrival, a strike by officers on board the tugs also prevented berthing. Ten days after arrival, the vessel was able to berth. The charter allowed a total laytime (“reversible laytime”) of 72 hours for loading and discharging and at the loading port about 20 hours had already been used. The delay caused the owners to claim demurrage.
Initially, the arbitrators found in favour of the charterers under cl. 6 of the charterparty. The reason was that the main cause of the delay was the restrictions imposed by the port authorities and the berth could not be reached on arrival because the vessel could not berth, not because the berth was unreachable.
On appeal, the English Commercial Court held that the arbitrators’ approach was incorrect. They had failed to give the words “reachable on arrival” their ordinary meaning. This meaning was not restricted to a physical cause on which the charterers seemed to be relying. “Reachable” means “able to be reached”. Therefore whether or not a clause may be unfair to charterers, it is what the charterparty states and the precise meaning of the words that is more important.
The vessel was delayed from berthing for reasons which had no connection with congestion, the cause of delay in The Laura Prima. Congestion is a physical cause. However, the judge declared that there should be no distinction between physical causes and non-physical causes. The latter will include prohibition of berthing by port authorities and strikes by tug crew.
A second case in the same month, but before a different judge, concerned The Sea Queen, 1988, and the same charterparty form, with the same clauses. When the vessel arrived at the loading port (Mina al Ahmadi in Kuwait) there was a delay of about seven hours after arrival because of unavailability of tugs. When the tugs became available, bad weather prevented the berth for approximately another two days. The berth was also unoccupied during this delay period. Once again the arbitrators found in favour of the charterers, who had no control over the tugs, and once again the court held that the charterers bore the burden of delay under cl. 9.
The judge said:
“. . . it is clear from the decision of the House of Lords in The Laura Prima . . . that cl. 6 and 9 of the charter . . . must be read together; and that the word `berth’ in the last sentence of cl. 6 means a berth for the vessel reachable on her arrival designated or procured by the charterers in accordance with cl. 9 . . .”
“. . . it seems to me that the charterers have warranted in clear and simple words that there will be a berth which the vessel will be able to reach on her arrival-so that if there is not, for whatever reason, then the charterers have failed to perform this part of their bargain.”
In The Kyzikos, 1989, the term “reachable on arrival” was also examined in relation to the availability of the berth on arrival and the possibility of giving a Notice of Readiness “whether in berth or not” (“WIBON”). When the Kyzikos reached the discharging port the berth was available but fog prevented vessel movements. In the English High Court the owners could not establish that the charterers were in breach of their absolute obligation to nominate a berth, which was always accessible. Following the definition given above, this can be considered to cover also a berth, which was reachable on arrival. When the case went to the Court of Appeal and to the House of Lords, the accessibility (or “reachability”) of the berth was not in issue but only the phrase, “whether in berth or not”. It was said in the House of Lords that this phrase (WIBON) “ . . . should be interpreted as applying only to cases where a berth was not available and not to cases where a berth was available but unreachable by reason of bad weather . . .”.
Therefore, the unqualified meaning of the expression “reachable” (and “accessible”) is still as was described in the High Court. It means that the berth is “…capable of being approached in the sense of having unobstructed way or means of approach and the expression ‘always accessible’ was an adjectival description, descriptive of the berth, and meant only that the berth was capable of being approached . . .”.
The meaning (and consequence) of the expression can therefore be modified by bad weather and other navigational risks.
Reachable on arrival. In the “Charterparty Laytime Definitions 1980” this expression is joined with “Always accessible”. The expressions are stated to mean that:
“ …the Charterer undertakes that when the ship arrives at the port there will be a loading/discharging berth for her to which she can proceed without delay.”
In a case reported in 196, The President Brand, the judge said that:
“`Reachable’ as a matter of grammar means `able to be reached’. There may be many reasons why a particular berth or discharging place cannot be reached . . . Accordingly, in my judgment, the Charterers’ obligation is to nominate a berth which the vessel could reach on arrival and they are in breach of that obligation if they are unable to do so.”
In The Laura Prima, 1982, it was said by the same judge that:
” `Reachable on arrival’ is a well known phrase and means precisely what it says. If a berth cannot be reached on arrival, the warranty is broken unless there is some relevant protecting exception.”
In that case, the vessel was delayed getting into the loading berth because of congestion. The charterers had failed in providing a berth that was reachable on arrival.
This decision was followed in The Sea Queen, and The Fjordaas, each decided in November 1987, within days of each other, in the English High Court by different judges. In The Sea Queen, the vessel was delayed getting on to the berth because of lack of tugs and also bad weather. In The Fjordaas the reason the vessel was unable to berth at an unoccupied and available berth was a combination of factors, including a prohibition on night navigation and compulsory pilotage. Neither case involved congestion, yet the cases followed The Laura Prima, and the berths were not “reachable on arrival”.
Therefore, if the berth is not “reachable on arrival”, the delay in berthing is at the risk of the charterer. The Notice of Readiness and laytime clause may state, for example, that:
“Upon arrival at customary anchorage at each port of loading or discharge, the Master or his agent shall give the Charterer or his agent notice . . . that the vessel is ready to load or discharge cargo, berth or no berth , and laytime, … shall commence upon the expiration of six (6) hours after receipt of such notice … (ASBATANKVOY or EXXONVOY 1969)
In this situation, as in the above three cases, the charterer may become liable for demurrage or for damages for detention.